1. By an agreement dated 11-9-1963 the defendant agreed to convey to the plaintiff Ac. 10-30 guntas of land situated in the village of Madnoor, for a consideration of Rs. 10,500/- On the date of the agreement the vendor received a sum of Rs.5,500/-. It provided taht the balance of the purchase-money was payable in five instalments. A sum of Rs, 3,000/- was payable on or before the 31st January, 1964 and the balance of Rs.2,000/- was to be paid in four equal instalment by the Telugu New Year's day in each of the years from 1965 to 1968, both inclusive. The agreement recites that the vendee has agreed that in case of the default he shall have no rights to the land. It further provided that after the payment of the 1st instalment the Vendor was to execute a deed of sale if called upon to do so.
2. The amount of Rs. 3,000/- payable before the expiry of January, 1964 was not paid within the time specified. But it is common ground that on the 19th March and 30th September, 1964 the Vendor received Rs. 950/- and Rs.550/- respectively. The acceptance of these two payments is clear indication that the vendor waived the time-limit prescribed by the agreement in respect of the first instalment.
3. There was an exchange of notice between the parties in 1965. On 6-10-1965 the vendor issued a notice complaining about the non-performance of the obligation by the vendee and calling upon him to surrender possession of the property. It may be mentioned that the vendee was cultivating the lands even before the date of the agreement. By the above mentioned notice. Ex. B-1 the vendor notified to the other party that the agreement stood cancelled and therefore he was entitled to the restorations of the possession. To this, a reply was sent on 8-11-1965 as per Ex.B-2. The vendee said that he was allowed an extension of time for the payment of the instalments and therefore the vendor could not complain about the delay. The vendee took the stand that an application under Section 47 of the Andhra Pradesh Tenancy and Agricultural Lands Act. 1950 was bound to be made by the seller. The reply notice accordingly called upon the vendor to fulfill the obligations of securing the permission prescribed by the statute. The vendee expressed his readlines and willingness to pay the amounts that accrued due as per the instalement, provided the vendor started proceedings under Section 47 . It was asserted in Ex. B-2 that the vendor who was no other than the cousin of the who was no other than the cousin of the vendee had agreed to accommodate the purchaser by granting extension of time. Ex B-2 evoked a rejoinder under Ex. B-3 dated 19-11-1965. The vendor reiterated his case about the default by the purchaser and maintained that the construct elapsed and was no longer subsisting.
4. The suit was thereupon instituted by the appellant for the enforcement of the contract. The respondent pleaded that time was the essence of the contract and that the non-payment of the amount that accrued due under two installment justifies the cancellation of the agreement.
5. The lower Court dismissed the suit on two grounds. In the first place for specific performance was maintainable by reason of the provisions of the Andra Pradesh Tenancy and Agricultural Lands Act. The trial Judge was of opinion that the agreement did not make it obligatory on the vendor to obtain the requisite sanction under the aforementioned Act. The second ground on which the plaintiff was non suited was that there was undue delay on the part of the plaintiff in the performance of his notwithstanding the court's opinion that time was not the essence of the agreement and that the vendor had in fact granted an extension of time for making payments under the first instalment.
6. In this appeal by the plaintiff, it is submitted at the outset that, the view taken by the lower court that a suit for specific performance is unenforceable is no longer valid in view of the pronouncement of a Division Bench of this Court. This argument has to prevail. In fact, nothing to the contrary is said by the learned counsel for the respondent. It is laid down by a Division Bench, to which I was a party, in Syed Jalal v. Targopal Ram Reddy, : AIR1970AP19 that under Section 47 there can be no bar tot he maintainability of a suit for specific performance of an agreement to direct the seller to apply for permission under Section 47. In a suit of that description, a direction can be given by the court to the seller to execute a sale deed after obtaining the requisite sanction under the Act. It was also pointed out in that decision that even in case where an agreement did not contain any specific term imposing an obligation on the seller, a suit for specific performance would be maintainable. The trial Judge's opinion is not in conformity with the law as laid down by this Court. His view that the absence of a specific provision in the agreement requiring the seller to apply for permission justifies the stand taken by the defendant is not correct. The first ground of non-suit must be pronounced to be unsustinable.
7. The main question for determination is whether the dismissal of the suit on the ground undue delay on the part of the plaintiff can be upheld. Learned counsel for the respondent sought to make out that the circumstances of the case are such that the court ought not to exercise discretion in favour to the plaintiff. The facts are very clear that there was undoubtedly an acceptance of two payments by the vendor after the expiry of the date fixed for the first payment. There is thus a mainfest indication of the vendor waiving the limit of time prescribed by the agreement. The question is whether there after, he was justified in treating the contract as having lapsed, when he gave notice on 6-10-1965. In Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 886 it was laid down as follows;
'Intention to make time the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not the essence.'
8. In the case dealt with by the Supreme Court there was n express stipulation nor were there any circumstances to indicate that the intention of the parties was that time was to be the essence of the contract. It was recognised that in such a case it was still possible for the vendor to have served upon the respondent a notice calling upon him to take a conveyance within the time fixed and intimate that in defalut of compliance with the requisition, the contract will be treated as canceled. The principle that emerges from the decision is that when a vendor wants to obtain a fulfillment of the contract within a reasonable time specified by him, he should duly notify the vendee about his intention. The factual position here is analogous to that in the case decided by the Supreme Court. Time was not the essence of the contract as is evidence from the provisions in the agreement spreading payments over a period of more than four years. Even with reference to the first instalment, the intention does not appear to be to make time the essence of the contract. Assuming however that the position in regard to the first instalment was different and that the adherence tot he time-limit was considered a material term of the contract even so, the waiver of that condition by the respondent at a later date, is clearly mainfested. The position was that after the expiry of the date the vendor accepted payment without demur. While doing so, he did not choose to fix any time-limit for the payment of the balance. The resultant situation was that time was no longer the essence of the contract even if it was a material condition as per the understanding at the time of the execution of the agreement.
9. Was it permissible for the vendor under those circumstances to treat the contract as cancelled merely on the basis that the amount due as per the first and the second instalments was not paid till October, 1965 when the native was issued? The answer must be that he did not have the right to treat the contract as having been cancelled. As time was not the essence of the contract, in any case after the acceptance of the payments in March and September, 1964, the only method by which the situation could be altered was by the vendor issuing a notice to the vendee fixing a time for the performance of the contract. As this step was not taken the notice notifying the appellant that the contract stood canceled was not within the competence of the respondent.
10. This leads to the question whether the delay on the part of the plaintiff disentitles him to the relief of specific performance. In Satyanarayana v. Yelloji Rao, : 2SCR221 the principle laid down is that mere delay is no bar to the granting of specific performance when it is not accompanied by such conduct on the part of the plaintiff as has caused prejudice to the defendant. The rule is that a Court cannot decline to grant specific relief solely on the ground of delay. The question for consideration is whether the conduct of the plaintiff implies an abandonment of his right under the contract or whether the situation has been so altered as to make it inequitable to enforce the contract. The matter is essentially one for the expercise of the discretion of the Court. Diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. The discretion must be based on sound principles and is capable of being corrected by a Court of appeal. In the present case, no question of wavier arises. The appellant insisted upon the preliminary requisite step being fulfilled for the implementation of the contract. He has categorically stated that he was prepared to pay the amount due under the instalments provided the proceedings for obtaining sanction was commence by the Vendor. There is therefore no wavier or the abandonment on the part of the appellant nor cannot be said that the circumstances have so materially altered as to make the enformcenet of the cotract oppressive. It must be remembered that the parties themselves provided for a period of about 4 years for the complete performance of the obligations. Consequently, it cannot be said that the enforcement of the contract is prejudicial or oppressive and that the delay on the part of the plaintiff disentitles him to the grant of specific relief.
11. I am unable to accept the contention urged on behalf of the respondent that in the circumstances the Court's descretion should not be exercised in favour of the plaintiff. Aparted in favour of the plaintiff. Apart from the fact that there was default in the payment of the amount due under the two instalmenets, no other ground had been made out for rejecting the claim for specific performance. As explained already, mere delay is not ground for refusal of specific performance. As explained already, a mere delay is not ground for refusal of specific performance. The decision of the lower court was that undue delay on the plaintiff's part disentitled him to the relief of specific performance. This view is not in accordance with the well settled precedent. The lower court did not consider it pertinent to decide whether notwithstanding the delay on the part of the plaintiff the court ought not to exercise its discretion in favour of the plaintiff.
12. For the reasons mentioned above, the appeal must be allowed and the suit decreed. I do not think it just to award costs to the appellant because one of the positions taken by him in his reply notice in November. 1965 about the tender of payment of money must be held to be untrue. The suit is decreed but the parties will bear their respective costs throughout. The decree for specific performance is conditional on the appellant depositing into the court the balance of the purchase money together with interest from the date from which the amount accrued due, at 6% per annum. The deposit of the entire price is to be made within one month from today.
13. In view of the result in the appeal, the Civil Revision Petition also has to be allowed. There will be no order as to costs.
14. Appeal and revision allowed.